GALLEGOS V. FREZZA, 2015-NMCA-101,
357 P.3d 408
FERNANDO GALLEGOS, Plaintiff-Appellant,
v.
ELDO FREZZA, M.D., Defendant-Appellee,
and
PRESBYTERIAN HEALTH PLAN, INC., A New Mexico Domestic
For-Profit Corporation, Defendant.
Consolidated With
NELLIE GONZALES, Plaintiff-Appellant,
v.
ELDO FREZZA, M.D., Defendant-Appellee,
and
PRESBYTERIAN HEALTH PLAN, INC., A New Mexico Domestic
For-Profit Corporation, Defendant.
Docket Nos. 32,605 & 32,606
(Consolidated)
COURT OF APPEALS OF NEW MEXICO
2015-NMCA-101, 357 P.3d 408
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY, Sarah
M. Singleton, District Judge.
Released for Publication October 13,
2015.
Jones, Snead, Wertheim & Clifford,
P.A., Jerry Todd Wertheim, Roxie P. Rawls-De Santiago, Samuel C. Wolf,
Elizabeth C. Clifford, Santa Fe, NM, for Appellants.
Hinkle, Hensley, Shanor & Martin,
LLP, William P. Slattery, Dana S. Hardy, Zachary T. Taylor, Santa Fe, NM, for
Appellee.
Brown & Gay, P.C., Remo E. Gay,
Melissa A. Brown, Albuquerque, NM, for Defendant Presbyterian Health Plan, Inc.
MICHAEL D. BUSTAMANTE, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge, CYNTHIA A. FRY, Judge
AUTHOR: MICHAEL D. BUSTAMANTE.
{1} Plaintiffs Nellie
Gonzales and Fernando Gallegos appeal the district court’s dismissal of their
medical malpractice suit against Dr. Eldo Frezza, a Texas resident, for lack of
personal jurisdiction. On appeal, we examine whether Dr. Frezza has sufficient
contacts with the State of New Mexico to permit the state courts to assert
either general or specific personal jurisdiction over him. We conclude that
most of the asserted contacts with this state are insufficient to establish
general jurisdiction. We remand for further proceedings, however, because the
record on appeal is insufficient to address whether personal jurisdiction
exists based on an arrangement between New Mexico Presbyterian Health Plan and
Texas Tech Physicians Associates through which Dr. Frezza was referred New
Mexico residents for care.
{2} After undergoing
bariatric surgery, New Mexico residents Nellie Gonzales and Fernando Gallegos
(collectively, Plaintiffs) sued Dr. Eldo Frezza for medical malpractice and
Presbyterian Health Plan (Presbyterian) for breach of contract and negligent
referral. Both surgeries took place in Lubbock, Texas at the Texas Tech
University Health Sciences Center (the Center). Dr. Frezza was an employee of
the Center, which is a governmental unit of the State of Texas.
See Tex.
Tech Univ. Health Scis. Ctr. v. Ward, 280 S.W.3d 345, 348 (Tex. App. 2008)
(stating that the Center is a governmental unit).
{3} Both Plaintiffs
were employees of the State of New Mexico and covered by Presbyterian. When
they sought insurance coverage for the bariatric procedure, they were directed
to Dr. Frezza by Presbyterian. No other bariatric surgeons were in the
Presbyterian network at that time.
{4} Dr. Frezza moved
for dismissal based on the lack of personal jurisdiction and Plaintiffs’ failure
to state a claim.
See Rule 1-012(B)(2), (6) NMRA. After a hearing at
which it considered documentary evidence, the district court found that it did
not have personal jurisdiction over Dr. Frezza and dismissed the complaint. The
district court did not rule on Dr. Frezza’s other motion. Plaintiffs appealed.
Plaintiffs also filed a motion for reconsideration in the district court under
Rule
1-060(B)(6) NMRA. Such motion “does not affect the finality of a judgment
or suspend its operation.”
Id. As of the time that briefs were
submitted, the district court had not ruled on the motion for reconsideration.
Additional facts are provided as pertinent to our discussion.
{5} We note that these
cases are two of three presently before the Court of Appeals that are based on
a similar set of facts.
See Montaño v. Frezza, COA No. 32,403. In
Montaño,
filed concurrently, we hold that the Second Judicial District Court did not err
in concluding that application of Texas law would violate New Mexico public
policy and denying Dr. Frezza’s motion to dismiss for failure to state a claim.
A. The Law
of Personal Jurisdiction
{6} The question before
us on appeal is whether the district court properly concluded that it could not
fairly exert jurisdiction over Dr. Frezza because he did not have sufficient
contacts with New Mexico.
See Zavala v. El Paso Cnty. Hosp. Dist.,
2007-NMCA-149, ¶ 10,
143 N.M. 36,
172 P.3d 173 (“[F]or purposes of personal
jurisdiction, we . . . focus on . . . whether [the defendants] had the requisite
minimum contacts with New Mexico to satisfy due process.”). “[T]he minimum
contacts required for the state to assert personal jurisdiction over a
defendant depends on whether the jurisdiction asserted is general (all-purpose)
or specific (case-linked).”
Sproul v. Rob & Charlies, Inc.,
2013-NMCA-072, ¶ 9,
304 P.3d 18. More specifically, “[a] state exercises
general jurisdiction over a nonresident defendant when its affiliations with
the state are so continuous and systematic as to render it essentially at home
in the forum state.”
Id. ¶ 12 (alterations, internal quotation marks,
and citation omitted). Specific jurisdiction may apply “if [a] defendant’s
contacts do not rise to the level of general jurisdiction, but the defendant
nevertheless purposefully established contact with New Mexico.”
Id. ¶ 16
(internal quotation marks and citation omitted). “In contrast to general,
all-purpose jurisdiction, specific jurisdiction is confined to adjudication of
issues deriving from, or connected with, the very controversy that establishes
jurisdiction.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.
Ct. 2846, 2851 (2011) (internal quotation marks and citation omitted). In
analyzing a defendant’s contacts with New Mexico, our focus is on the
“defendant’s activities which . . . provide the basis for personal
jurisdiction, not the acts of other defendants or third parties.”
Visarraga
v. Gates Rubber Co.,
1986-NMCA-021, ¶ 18,
104 N.M. 143,
717 P.2d 596.
{7} “Once it has been
decided that a defendant purposefully established minimum contacts within the
forum [s]tate, these contacts may be considered in light of other factors to
determine whether the assertion of personal jurisdiction would comport with
fair play and substantial justice.”
Burger King Corp. v. Rudzewicz, 471
U.S. 462, 476 (1985) (internal quotation marks and citation omitted). Thus, as
part of the overall analysis of whether exercise of jurisdiction would comport
with constitutional due process, we may consider “the burden on the defendant,
the forum [s]tate’s interest in adjudicating the dispute, the plaintiff’s
interest in obtaining convenient and effective relief, the interstate judicial
system’s interest in obtaining the most efficient resolution of controversies,
and the shared interest of the several [s]tates in furthering fundamental
substantive social policies.”
Id. (internal quotation marks and citation
omitted).
{8} Here, the district
court concluded that it had neither general nor specific jurisdiction over Dr.
Frezza. We review this conclusion de novo.
Cronin v. Sierra Med. Ctr.,
2000-NMCA-082, ¶ 10,
129 N.M. 521,
10 P.3d 845. Our approach to review was
stated succinctly in
Cronin:
If[] . . . a district court bases
its ruling upon the parties’ pleadings and affidavits, the applicable standard
of review largely mirrors the standard that governs appeals from the award or
denial of summary judgment. In this respect, both a district court and this
appellate court must construe the pleadings and affidavits in the light most
favorable to the complainant. The complainant need only make a prima facie
showing that personal jurisdiction exists when a district court does not hold
an evidentiary hearing.
{9} Although only a
prima facie showing is required, “[w]hen a party contests the existence of
personal jurisdiction under Rule 1-012(B)(2) and accompanies its motion with
affidavits or depositions, . . . the party resisting such motion may not stand
on its pleadings and must come forward with affidavits or other proper evidence
detailing specific facts” supporting jurisdiction.
Doe v. Roman Catholic
Diocese of Boise, Inc.,
1996-NMCA-057, ¶ 10,
121 N.M. 738,
918 P.2d 17;
see
State ex rel. Anaya v. Columbia Research Corp.,
1978-NMSC-073, ¶ 8,
92
N.M. 104,
583 P.2d 468 (holding that the state failed to establish personal
jurisdiction over the defendant when it did not proffer proof of the
jurisdictional facts alleged in its complaint after the defendant challenged
them).
C. Plaintiffs’
Allegations
{10} Given this standard
of review, we set out Plaintiffs’ allegations in some detail. Here, Plaintiffs
made the following assertions:
2. [Dr.
Frezza] is licensed to practice medicine in the State of New Mexico[;]
6. Plaintiff[s’]
cause[s] of action arise[] from Dr. Frezza’s and Presbyterian’s transaction of
business within the State of New Mexico through which Dr. Frezza and
Presbyterian undertook to encourage New Mexico citizens to travel to Lubbock,
Texas where they would receive bariatric surgery from Dr. Frezza[;]
7. Dr.
Frezza used a combination of advertising in New Mexico, testimonials from
former New Mexican patients, and a special relationship with Presbyterian to
encourage New Mexico residents to seek treatment from him . . . [;]
8. Dr. Frezza
encouraged his patients to use his website to provide testimonials, prominently
noting their status as New Mexico residents, in order to encourage other New
Mexico residents to seek treatment from him[;]
9. Dr.
Frezza used his website to reach New Mexico
residents . . . [;]
10. Dr.
Frezza’s advertising in New Mexico . . . and the special relationship he
developed with Presbyterian were successful efforts undertaken by [him] to
secure patients from New Mexico, which constitute[s] the transaction of business
within the [s]tate[;]
12. Dr.
Frezza . . . on numerous occasions traveled to Santa Fe and saw or treated
patients during the trip . . . [;]
13. On
information and belief, Dr. Frezza owns six tracts of real property in the
State of New Mexico, County of Taos, and is therefore also subject to general
jurisdiction in . . . New Mexico[;]
14. [Two] of
many New Mexico citizens who learned of Dr. Frezza through his advertising and
[were] told by Presbyterian that Dr. Frezza was the only “in network” bariatric
surgeon from whom [they] could receive treatment [were P]laintiffs, who
traveled to Lubbock, Texas for surgery by Dr. Frezza[;]
15. [Plaintiff[s’]
causes of action arise[] directly from Dr. Frezza’s transaction of business
within the State of New Mexico.
{11} Thus,
Plaintiffs asserted that Dr. Frezza had four types of contact with New
Mexico: (1) a website, (2) a New Mexico medical license, (3)
ownership of property in New Mexico, and (4) a relationship with Presbyterian.
On appeal, they also argue that a book by Dr. Frezza called
The Business of
Surgery, in which the author discusses strategies for negotiating
beneficial managed care agreements and which is available in New Mexico,
provides another contact with this state. In support of these allegations,
Plaintiffs offered a print out of Dr. Frezza’s website, selected pages from Dr.
Frezza’s book, and copies of the deeds to property in New Mexico owned by Dr.
Frezza.
D. Dr.
Frezza’s Affidavits
{12} Dr. Frezza
challenged Plaintiffs’ jurisdictional assertions by presenting his own
affidavit as well as an affidavit by Lori Velten, the Managing Director of
Provider-Payor Relations at the Center. In addition to these affidavits, Dr.
Frezza provided a copy of the “[s]pecialty [s]ervices [a]greement” (the
agreement) between Presbyterian and Texas Tech Physicians Associates (TTPA), an
organization established by the Center to handle managed care contracting.
{13} In his affidavit,
Dr. Frezza stated that he was a “participating provider” with Presbyterian and
that he “did not solicit patients from the State of New Mexico [but] treated
several New Mexico residents who traveled to Texas by virtue of [his] status as
a participating provider with . . . Presbyterian.” He stated that he “ha[s]
never practiced medicine in the State of New Mexico” and “never provided care
or treatment to any of [his] patients in New Mexico.” He stated that he “did
not engage in any advertising activities that were directed at residents of New
Mexico” and that “[he] was unaware of any advertising activities by [the
Center] that were undertaken in New Mexico.” Finally, he stated that he “did
not personally seek to become credentialed with . . . Presbyterian. Rather,
[TTPA] was credentialed with . . . Presbyterian. As a member of that group,
[he] was required to submit a credentialing application to . . . Presbyterian.”
{14} Ms. Velten stated in
her affidavit that “TTPA decides what insurance will be accepted by [TTPA]
physicians and health care providers” and that Dr. Frezza “did not have the
authority to decide which insurance he would or would not accept.” She also
stated that Dr. Frezza “was subject to the [a]greement [with Presbyterian].”
Finally, she stated, “As an employee of [the Center], and contracted with TTPA,
Dr. Frezza was requested to submit a credentialing application to [the Center]
and TTPA pursuant to the separate delegated credentialing agreement.”
{15} Plaintiffs argue
that New Mexico has both general and specific jurisdiction over Dr. Frezza. Our
next step, therefore, is to examine the alleged bases for each to see whether
they establish the contacts necessary for jurisdiction. Consistent with our
standard of review, we compare Plaintiffs’ complaints with the evidence
submitted by Dr. Frezza to see if Plaintiffs’ assertions of jurisdiction were
challenged.
See Plumbers Specialty Supply Co. v. Enter. Prods. Co.,
1981-NMCA-083, ¶ 9,
96 N.M. 517,
632 P.2d 752 (examining which of the alternate
bases for jurisdiction were challenged and holding that “[i]nasmuch as one
ground of alleged jurisdiction was not challenged, . . . the trial court did
not err in [denying the defendant’s motion to dismiss and request for an
evidentiary hearing]”). We address general jurisdiction first.
{16} Plaintiffs argue
that Dr. Frezza’s website, medical license, book, property ownership, and
agreement with Presbyterian are contacts sufficiently “continuous and
systematic” to give New Mexico general jurisdiction over Dr. Frezza.
See
Zavala,
2007-NMCA-149, ¶ 12. We examine each assertion in turn. We
conclude that none of the first four bases is sufficient to establish general
jurisdiction. We also conclude that there are factual questions related to the
agreement with Presbyterian and that resolution of those questions is a
prerequisite to determining whether the agreement is a sufficient contact with
New Mexico.
{17} “Establishment of a
passive website that can be viewed internationally is not sufficient to support
general personal jurisdiction absent some showing that the website targeted New
Mexico.”
Id. ¶ 20. Plaintiffs argue that Dr. Frezza’s website targeted
New Mexico residents by listing his New Mexico medical license and including
testimonials by New Mexico residents, and that it was not merely passive
because it “encouraged” visitors to submit testimonials through the website. We
disagree.
{18} First, the inclusion
of Dr. Frezza’s licensure status and testimonials by New Mexico residents does
not by itself indicate that the website targeted New Mexico. Dr. Frezza’s
website also indicated that he was licensed by Texas, Illinois, and
Pennsylvania. Statement of the fact that he held those licenses does not target
residents of those states because (1) all that is required for Dr. Frezza to
practice in Texas is a Texas license; and (2) there is no indication in the
record that the requirements for a New Mexico license differ from those for a Texas
license such that a doctor with a New Mexico license would be more attractive
to a New Mexico resident.
Cf. Schexnayder v. Daniels, 187 S.W.3d
238, 249 (Tex. App. 2006) (stating that a website that included the defendant’s
“biography, credentials, and job description” was “informational in nature”);
Advance
Petroleum Serv., Inc. v. Cucullu, 614 So. 2d 878, 880 (La. Ct. App. 1993)
(holding that listing a Louisiana law license on a Texas lawyer’s letterhead is
not an advertisement targeted to Louisiana clients and instead “should be
considered merely a listing of professional accomplishment”). Similarly,
testimonials on the website may be read by any visitor to the site and are
equally persuasive regardless of the submitter’s state of residence. In other
words, the fact that a testimonial was written by a New Mexico resident does
not necessarily make it particularly compelling to other New Mexicans. In
addition, there is nothing about the site that specifically solicits
testimonials by New Mexico patients.
Cf. Snowney v. Harrah’s Entm’t, Inc.,
112 P.3d 28, 34 (Cal. 2005) (“By touting the proximity of their hotels to
California and providing driving directions from California to their hotels,
[the] defendants’ [w]eb site specifically targeted residents of California.”).
{19} Plaintiffs rely on
Silver
v. Brown, 382 F. App’x 723, 730 (10th Cir. 2010), to argue that an
assessment of whether the website targeted New Mexico residents hinges on “not
who
could access the site, but who is most likely to—here, patients
considering surgery by [Dr. Frezza].” In that case, after a business
transaction between Silver and Brown went sour, Brown created a blog called “A
Special Report on David Silver and [Silver’s company]” on which he warned other
companies against doing business with Silver and called Silver a thief.
Id.
at 725. The court rejected the lower court’s determination that the blog did
not target New Mexico, stating that the district court’s “analysis
disregard[ed] the ubiquitous nature of search engines.”
Id. at 730. It
concluded that because of “sophisticated” search engines, “it is becoming . . .
irrelevant . . . how many worldwide or nationwide internet connections there
are . . . because . . . the people that are searching for information on
this
David Silver are the ones who are going to end up viewing Mr. Brown’s blog.”
Id.
In addition, there was evidence that Brown purposefully sought to “optimiz[e]”
the site so that it would be easier for New Mexico residents to find using a
search engine.
Id. Since it was clear that Brown intended the impact of
the blog to be felt in New Mexico, the court concluded that the blog targeted
New Mexico.
Id. (stating that “[a]ctions that are performed for the very
purpose of having their consequences felt in the forum state are more than
sufficient to support a finding” that they targeted the forum state. (internal
quotation marks and citation omitted)). The court held that specific personal
jurisdiction over Brown was proper.
Id. at 731.
{20} Silver is
inapposite. There the court was considering whether the blog was sufficient to
permit specific, not general, jurisdiction.
Id. at 728. Thus the
analysis necessarily addressed whether the tortious conduct arose out of the
contact with the forum state, i.e., the blog. Here, the issue is whether Dr.
Frezza’s contacts with New Mexico through the website are continuous and
systematic. As discussed, the standards for these types of personal
jurisdiction are different.
{21} In addition, the
Silver
court noted that the blog “was about a New Mexico resident and a New Mexico
company [and] complained of . . . Silver’s . . . actions in the failed business
deal [which] occurred mainly in New Mexico.”
Id. at 729-30. It also
noted that “Brown had knowledge that the brunt of the injury to . . . Silver
would be felt in New Mexico.”
Id. at 730. These facts indicated that
Brown “expressly aimed his blog at New Mexico.”
Id. at 729. The mere
listing of a New Mexico medical license and inclusion of testimonials by New
Mexico residents are simply not of the same quality and do not demonstrate that
Dr. Frezza targeted this state.
{22} Second, the website
is not sufficiently interactive. “[I]mplicit in ‘interactive’ activity is the
exchange of information between parties.”
Fenn v. Mleads Enters., Inc.,
2006 UT 8, ¶ 21, 137 P.3d 706;
see Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/interactive
(last visited Dec. 2, 2014) (defining “interactive” as “mutually or
reciprocally active” or “involving the actions or input of a user”). Here, the
submission of testimonials through the website was a one-way process.
Cf.
Sublett v. Wallin,
2004-NMCA-089, ¶ 30,
136 N.M. 102,
94 P.3d 845
(holding a website insufficiently interactive to establish specific
jurisdiction where “[t]he only interactive feature of the website . . . was the
‘Locate an inspector’ feature, which requested minimal information and provided
little more than additional advertising information, i.e., contact information
and background information on [a local inspector]”). Because there is no
indication in the record that the website passed any information back to the
user based on submission of his or her testimonial and Plaintiffs do not assert
that it did, Dr. Frezza’s website is even less interactive than that in
Sublett.
We conclude that the website neither targets New Mexicans nor is sufficiently
interactive to demonstrate that Dr. Frezza purposefully directed it toward New
Mexico.
See Zavala,
2007-NMCA-149, ¶ 20.
{23} Plaintiffs maintain
that the “[m]ost notable” contact Dr. Frezza had with New Mexico was his New
Mexico medical license. Dr. Frezza held the license from January 2006 to July
2009. In July 2009, Dr. Frezza’s status was changed to “inactive.” Thus, Dr.
Frezza did not hold an active New Mexico medical license at the time of the
surgeries or at the time of the filing of Plaintiffs’ complaints.
{24} We pause here to
address the appropriate time frame relevant to the general jurisdiction
analysis. Several New Mexico cases state that “[a]s a general rule, the
existence of personal jurisdiction may not be established by events which have
occurred after the acts which gave rise to [a p]laintiff’s claims.”
Doe,
1996-NMCA-057, ¶ 19;
Tercero v. Roman Catholic Diocese of Norwich, Conn.,
2002-NMSC-018, ¶ 9,
132 N.M. 312,
48 P.3d 50. Both of these cases cite
Steel
v. United States, 813 F.2d 1545, 1549 (9th Cir. 1987), in which the court
stated that “courts must examine the defendant’s contacts with the forum at the
time of the events underlying the dispute when determining whether they have
jurisdiction.” But this statement was made in the context of specific
jurisdiction, not general jurisdiction.
See id. (referencing specific
jurisdiction);
DVI, Inc. v. Superior Court, 128 Cal. Rptr. 2d 683, 698
(2002) (stating that the
Steel holding referred to specific
jurisdiction). In addition, neither
Tercero nor
Doe distinguished
between “specific jurisdiction” or “general jurisdiction,” but both cases
hinged on whether the cause of action arose out of the enumerated acts in New
Mexico’s “long-arm statute,” NMSA 1978, §
38-1-16 (1971).
See Tercero,
2002-NMSC-018, ¶ 10 (stating that jurisdiction based on the transaction of
business prong of the long-arm statute is consistent with due process “only if
the cause of action arises from the particular transaction of business”
(internal quotation marks and citation omitted));
Doe,
1996-NMCA-057, ¶
12 (stating that the appropriate test was “whether (1) the acts of the
defendant are specifically set forth in this state’s long-arm statute, (2) the
plaintiff’s cause of action arises out of and concerns such alleged acts, and
(3) the defendant’s acts establish minimum contacts to satisfy constitutional
due process concerns”). It is not entirely clear, therefore, that the statements
in those cases as to the appropriate time frame apply in the general
jurisdiction context. 4 Charles Alan Wright & Arthur R. Miller,
Federal
Practice and Procedure § 1067.5 (3d ed. 2002) (“As a practical matter, a
general jurisdiction inquiry is very different from a specific jurisdiction
inquiry.”).
{25} The parties did not
identify any New Mexico cases explicitly addressing the time frame for a
general jurisdiction analysis, nor did our own research uncover one.
See
Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir.
1996) (“Few cases discuss explicitly the appropriate time period for assessing
whether a defendant’s contacts with the forum state are sufficiently
‘continuous and systematic’ for the purposes of general jurisdiction.”). In
addition, “[t]he [United States] Supreme Court never has spoken on the issue of
determining the proper time[]frame for the defendant’s contacts with the forum
[in a general jurisdiction analysis].” Wright,
supra (Supp. 2014). This
issue raises two questions. “First, it must be determined whether continuous
and systematic contacts need to exist at the time the claim accrues, or at the
time the lawsuit is filed.”
Id. The courts appear divided on this
question.
See id. n.11.50 (collecting cases).
But see Harlow
v. Children’s Hosp., 432 F.3d 50, 64 (1st Cir. 2005) (“It is settled law
that unrelated contacts which occurred after the cause of action arose, but
before the suit was filed, may be considered for purposes of the general
jurisdiction inquiry.”). The second question is “how far back from either the
accrual or filing of the claim [courts] will look[.]” Wright,
supra (Supp.
2014). “[M]ost courts use a ‘reasonable time’ standard yielding time[]frames of
roughly three to seven years.”
Id.;
see, e.g.,
Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 410-11, 415-16 (1984)
(examining contacts over seven-year period (1970-1977), including after the
1976 accident from which the plaintiff’s claims arose, in a general
jurisdiction analysis).
{26} We need not
determine whether general jurisdiction in New Mexico depends on contacts extant
at the time a claim accrued or at the time the complaint is filed, however,
because even if we consider the medical license in our analysis, we conclude
that possession of a medical license is not sufficient in and of itself to
subject Dr. Frezza to general jurisdiction in New Mexico courts. The general
rule gleaned from cases in sister states is that possession of a medical
license in the forum state may be considered a contact for purposes of general
jurisdiction but is not sufficient on its own. For instance, in
Etchebarne-Bourdin
v. Radice, the District of Columbia Court of Appeals held that where “there
[was] no allegation that the doctors maintained their [District of Columbia]
licenses in order to solicit patients in the District[,]” the fact “that the
doctors maintained medical licenses to practice in the District cannot, without
more, serve as a basis for jurisdiction under the ‘transacting any business’ subsection
of the [D.C. long-arm] statute.” 982 A.2d 752, 759 (D.C. 2009). Similarly, in
Modlin
v. Superior Court, the California Court of Appeals held that the
defendant’s contacts with California were “tenuous at best” and insufficient
for general jurisdiction where the contacts consisted of possession of a
California medical license and three trips to California in four years. 222
Cal. Rptr. 662, 665 (Ct. App. 1986);
see also Ghanem v. Kay, 624
F. Supp. 23, 25 (D.D.C. 1984) (“A nonresident physician who arranges to be
licensed in the District [of Columbia] would not by this act alone reasonably
anticipate being required to defend a suit brought in the District . . . [but]
where a nonresident physician is not only licensed in a jurisdiction but
carries on significant activities within that jurisdiction, the due process
requirement of minimum contacts between a defendant and a forum state is
satisfied.”);
Dean v. Johns, 789 So. 2d 1072, 1079 (Fla. Dist. Ct. App.
2001) (“The various activities of [the Alabaman defendant], including the
relationships he has developed with referring Florida physicians to treat
Florida patients and his maintenance of a Florida medical license, easily pass
the minimum contacts test of the Due Process Clause.”);
Estate of Jones v. Phillips
ex rel. Phillips, 992 So. 2d 1131, 1141 (Miss. 2008) (considering licensure
in the forum state as well as arrangements the defendant made to treat the
plaintiff in the foreign state);
accord Hines v. Clendenning,
1970 OK 28, 465 P.2d 460, 463;
cf. Eastboro Found. Charitable Trust
v. Penzer, 950 F. Supp. 2d 648, 655-56 (S.D.N.Y. 2013) (concluding that
possession of a law license does not confer jurisdiction on the licensing state
and collecting cases);
Katz v. Katz, 707 A.2d 1353, 1357 (N.J. Super. Ct.
App. Div. 1998) (“We are equally convinced that the defendant’s license to
practice law in this state does not afford a basis to exercise
in personam
jurisdiction over him in a matter totally unrelated to his professional
license.”).
{27} Plaintiffs also
point to Dr. Frezza’s ownership of property in New Mexico. They argue that Dr.
Frezza “purposefully availed himself of the protections and benefits of New
Mexico law by purchasing land here and making some use of that land.” The land
was purchased after the surgeries but before Plaintiffs’ complaints were filed.
The timing of these land purchases thus implicates the same questions raised
above. Nevertheless, we conclude that even if we consider the land purchases,
they are insufficient to demonstrate that Dr. Frezza had continuous and
systematic contact with New Mexico such that he could expect to be haled into
court here.
See Zavala,
2007-NMCA-149, ¶ 12 (“If a defendant has
continuous and systematic contacts with New Mexico such that the defendant
could reasonably foresee being haled into court in that state for any matter,
New Mexico has general personal jurisdiction.” (alteration, internal quotation
marks, and citation omitted)). Like a medical license, Dr. Frezza’s ownership
of property can be considered as a contact with New Mexico but it is not
sufficient on its own to establish jurisdiction over him.
Rush v. Savchuk,
444 U.S. 320, 328 (1980) (“[T]he mere presence of property in a [s]tate does
not establish a sufficient relationship between the owner of the property and
the [s]tate to support the exercise of jurisdiction over an unrelated cause of
action.”);
cf. F.D.I.C. v. Hiatt,
1994-NMSC-044, ¶ 10,
117 N.M.
461,
872 P.2d 879 (considering property ownership in assessment of
jurisdiction).
{28} To the extent
Plaintiffs argue that availability of Dr. Frezza’s book,
The Business of
Surgery, in New Mexico provides a contact sufficient for general
jurisdiction, we are not persuaded. Even if we accept Plaintiffs’ assertion
that “[u]ndoubtedly, [Dr. Frezza] expects the State of New Mexico to protect
his copyright . . . and has a plan for the commercial success of his book and
its distribution in New Mexico[,]” the distribution of Dr. Frezza’s book in New
Mexico does not rise to the level of contact required by the Due Process Clause
for general jurisdiction.
Cf. Sproul,
2013-NMCA-072, ¶ 14 (“[T]he
flow of a manufacturer’s goods into the forum state alone does not create
sufficient ties with that state to give it general jurisdiction over the manufacturer.”).
{29} Plaintiffs rely on
Beh
v. Ostergard for the proposition that “a plan [for distribution in New
Mexico] is sufficient for general jurisdiction to attach to [Dr. Frezza].” 657
F. Supp. 173, 178 (D.N.M 1987). The
Beh court stated that jurisdiction
would have been proper if the defendant there had “a regular distribution plan
for his publications into New Mexico for which he derived commercial
benefit[.]”
Id. Beh is not persuasive for two reasons. First, the
statement relied on was dicta not essential to the holding.
Id. Second
and more importantly, this statement was based on
Blount v. T D Publishing
Corp., in which the New Mexico Supreme Court held that “placing . . .
magazines in national channels of commerce . . . submits the publisher to
jurisdiction in all states
where his product causes injury.”
1966-NMSC-262, ¶ 16,
77 N.M. 384,
423 P.2d 421 (emphasis added). This holding
obviously applies to specific jurisdiction. Thus neither
Beh nor
Blount
are helpful to Plaintiffs’ assertions related to general jurisdiction.
See
Wright,
supra (noting the differences in the general and specific
jurisdiction analyses);
see also Sproul,
2013-NMCA-072, ¶ 16 (indicating
that the contacts necessary for general jurisdiction are more substantial than
those for specific jurisdiction).
Arrangement with Presbyterian
{30} Plaintiffs argue
that general jurisdiction is proper based on an “arrangement with Presbyterian
. . . [which] secur[ed] for [Dr. Frezza] a virtual guarantee of New Mexico
patient referrals.” The parties do not dispute that (1) Dr. Frezza treated New
Mexico residents, including Plaintiffs, referred to him by Presbyterian; (2)
there were no bariatric surgeons in New Mexico at the time; (3) Dr. Frezza was
a credentialed participating provider under the agreement between TTPA and
Presbyterian; and (4) Dr. Frezza was bound by the agreement. Plaintiffs
maintain that these facts are sufficient to establish the existence of a
relationship between Dr. Frezza and Presbyterian through which Dr. Frezza
“reached into [New Mexico] in order to attract [a] patient’s business[.]”
Cronin,
2000-NMCA-082, ¶ 26;
cf. Zavala,
2007-NMCA-149, ¶ 21 (concluding
that although “it is not necessarily sufficient by itself to justify the
exercise of general personal jurisdiction[,]” Medicaid registration “may be a
factor to consider” in a general jurisdiction analysis).
{31} We note that Dr.
Frezza’s arguments in the district court and on appeal take several different
approaches. In his pleadings below, Dr. Frezza acknowledged that his status as
a participating provider in Presbyterian’s network established a relationship
between him and the insurer. For instance, he analogized the agreement with
Presbyterian to Medicaid registration and acknowledged that such registration
can be considered a contact for purposes of general jurisdiction, implicitly
acknowledging that the agreement was a contact between him and New Mexico.
See
Zavala,
2007-NMCA-149, ¶ 21. Nevertheless, he argued that this contact was
insufficient for general jurisdiction.
See id. He also made several
references to “[t]he contractual relationship between Dr. Frezza and
Presbyterian,” arguing that it would not support specific jurisdiction because
Plaintiffs’ claims did not arise from it. In spite of these statements in his
pleadings, in the hearing before the district court Dr. Frezza relied on the
fact that he was not a party to the agreement and had no authority to decide
which insurance he would accept to argue that “there is no contract between Dr.
Frezza and Presbyterian.” Similarly, on appeal, Dr. Frezza maintains that,
because he was not an employee of TTPA, was not a party to the agreement, and
had no authority to select with whom he would become a participating provider,
the agreement cannot be considered a contact between him and New Mexico for
purposes of jurisdiction. On appeal, he argues that “Plaintiff[s’] relationship
with Presbyterian[,] Presbyterian’s relationship with TTPA[,] and TTPA’s
relationship with Dr. Frezza . . . cannot [be] combine[d] . . . to establish
personal jurisdiction over Dr. Frezza.”
{32} In support of his
position at the hearing, Dr. Frezza submitted a copy of the agreement to the
district court. The district court concluded that the fact that Dr. Frezza was
not a party to the agreement was dispositive of whether Dr. Frezza had a
relationship with Presbyterian. We disagree because this conclusion does not
consider other facts surrounding the agreement, including, among other things,
that Dr. Frezza was a participating provider bound by the agreement, that New
Mexico patients were referred to him because of the agreement, and that there
were no New Mexico bariatric surgery providers at that time.
See Sproul,
2013-NMCA-072, ¶ 17 (“The question [of whether jurisdiction exists] cannot be
answered by applying a mechanical formula or rule of thumb but [must be
resolved] by ascertaining what is fair and reasonable under the circumstances.”
(alteration, internal quotation marks, and citation omitted));
cf. Dunn
v. Yager, 58 So. 3d 1171, 1186 (Miss. 2011) (holding that Mississippi had
general jurisdiction over the defendant where he “had participated in various
[preferred provider organizations (PPOs)], which,
inter alia, gave him
access to more than 800,000 members of [a Mississippi PPO] as prospective
clients” and recognizing that the defendant “solicited patients through the
PPOs, as an approved preferred provider” and the plaintiff’s claim had been
approved by a Mississippi insurer).
{33} Neither does the
rest of the record provide sufficient facts for us to assess whether the
arrangement with Presbyterian establishes a contact between Dr. Frezza and New
Mexico. Ms. Velten’s claims that Dr. Frezza had no authority to select which
insurance he would accept do not address the extent of Dr. Frezza’s rights and
obligations arising out of a contract with an insurer once it is selected by
TTPA. Dr. Frezza’s repeated reliance on the fact that he is not an employee of
TTPA likewise raises more questions than it answers. For instance, is Dr.
Frezza a member, partner, or owner of TTPA? Is he a third-party beneficiary of
TTPA’s contract with Presbyterian? Is there a contract with TTPA that defines
Dr. Frezza’s relationship with it, as Ms. Velten’s affidavit suggests, and/or
do the terms of his employment with the Center define his rights and
obligations with respect to TTPA? The nature of Dr. Frezza’s relationships with
both the Center and TTPA likely will inform the analysis of any relationship
with Presbyterian.
{34} Plaintiffs also
alleged that Dr. Frezza “used” or “developed” “a special relationship with
Presbyterian to encourage New Mexico residents to seek treatment from him[.]”
See
Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990) (“ ‘Purposeful
availment’ requires that the defendant have performed some type of affirmative
conduct which allows or promotes the transaction of business within the forum
state.” (internal quotation marks and citation omitted)). Dr. Frezza challenged
Plaintiffs’ assertion through submission of the agreement and affidavits. But
the agreement requires each participating provider to be “credentialed by
[Presbyterian].” Ms. Velten stated in her affidavit that “Dr. Frezza was
requested to submit a credentialing application to [the Center] and TTPA
pursuant to the separate delegated credentialing agreement.” The “separate
credentialing agreement” is not in the record. Dr. Frezza stated in his
affidavit that he “did not personally seek to become credentialed
with . . . Presbyterian. Rather, [TTPA] was credentialed
with . . . Presbyterian. As a member of that group, [he]
was required to submit a credentialing application
to . . . Presbyterian.” The extent to which Dr. Frezza
personally acted to become credentialed with Presbyterian is unclear from this
record. For instance, although Dr. Frezza asserts that he did not “personally”
seek to become credentialed, he also states that he submitted an application to
become credentialed. At the same time that he asserts that TTPA was credentialed,
he states that he submitted his own credentialing application to Presbyterian.
{35} We conclude that,
even if we view Plaintiffs’ assertions and Dr. Frezza’s evidence in the light
most favorable to jurisdiction,
Cronin,
2000-NMCA-082, ¶ 10, the parameters
of the relationship are unclear such that we cannot assess whether it is a
contact sufficient for general jurisdiction.
Cf. Russell v. SNFA,
946 N.E.2d 1076, 1080-81 (Ill. App. Ct. 2011) (“If we find that [the] plaintiff
has made a
prima facie case for jurisdiction, we must then determine if
any material evidentiary conflicts exist. If a material evidentiary conflict
exists, we must remand the case to the trial court for an evidentiary hearing.”
(citation omitted));
Sorezza v. Scheuch, No. 19717/07, 2008 WL 2186175,
at *6 (N.Y. Sup. Ct. May 13, 2008) (denying a motion for dismissal and stating,
“Absent further discovery concerning the nature of the contractual agreement or
arrangement between BlueCross/Blue Shield and the defendant with respect to his
‘participating provider’ status, the court is constrained from determining
whether such agreement or arrangement would qualify as a business transaction
[under New York’s long-arm statute]”). For instance, it remains unclear to what
extent Dr. Frezza was bound by or benefitted from the agreement, whether the
agreement required Dr. Frezza to accept Presbyterian patients, to what extent
Dr. Frezza himself sought to become credentialed with Presbyterian, and,
perhaps most importantly, whether and how Dr. Frezza became the sole provider
of bariatric surgery services to Presbyterian’s members.
Cf. Almeida
v. Radovsky, 506 A.2d 1373, 1375 (R.I. 1986) (relying on the specific terms
of the defendants’ agreement with a Rhode Island insurer and the fact that the insurer
did not refer Rhode Island patients to the defendants to hold that there were
insufficient contacts for jurisdiction). We therefore turn to whether
Plaintiffs have made a prima facie showing of specific jurisdiction.
{36} Plaintiffs argue
that New Mexico has specific personal jurisdiction over Dr. Frezza because
their claims arose from surgeries performed pursuant to Dr. Frezza’s
relationship with Presbyterian.
1
Even if Dr. Frezza’s relationship with Presbyterian is insufficient for general
jurisdiction, it may nonetheless be sufficient for specific jurisdiction.
See
ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 715
(4th Cir. 2002) (“[T]he threshold level of minimum contacts sufficient to
confer general jurisdiction is significantly higher than for specific
jurisdiction.” (internal quotation marks and citation omitted)). The district
court determined that Plaintiffs’ claims arose from medical care provided in
Texas, rejecting Plaintiffs’ argument that they arose from Dr. Frezza’s
relationship with Presbyterian. The district court therefore concluded that it
“[could not] exercise specific jurisdiction over Dr. Frezza” because
Plaintiffs’ claims were not connected with any contacts between Dr. Frezza and
New Mexico. In doing so, the district court avoided analyzing whether there was
a relationship between Dr. Frezza and Presbyterian sufficient for specific
jurisdiction.
{37} The district court’s
rejection of Plaintiffs’ contention that their claims arose from a relationship
between Dr. Frezza and Presbyterian rests on an overly narrow construction of
the requirement that the claims must “arise from” Dr. Frezza’s contact with New
Mexico. In
Goodyear Dunlop Tires, the United States Supreme Court stated
that specific jurisdiction applied when the claims “deriv[e] from, or [are]
connected with” the defendant’s contacts. 131 S. Ct. at 2851 (internal
quotation marks and citation omitted);
accord Helicopteros Nacionales,
466 U.S. at 414 (using the phrase “arise out of or relate to” in discussing
specific jurisdiction). This language permits a more expansive construction
than that applied by the district court. Similarly, our cases have held that
“for New Mexico to assert specific jurisdiction over a nonresident defendant,
the plaintiff’s claim must ‘lie in the wake’ of the defendant’s commercial
activities in New Mexico.”
Sproul,
2013-NMCA-072, ¶ 17 (alteration
omitted) (quoting
Visarraga,
1986-NMCA-021, ¶ 15). For example, in
Kathrein
v. Parkview Meadows, Inc., a New Mexican plaintiff sued an Arizona
defendant for “emotional and psychological trauma” she suffered after attending
“Family Week” at a treatment center where her husband was being treated.
1984-NMSC-117, ¶ 3,
102 N.M. 75,
691 P.2d 462. The Court held that the cause of
action was “a direct outgrowth of [the] defendant’s general solicitation for
business in New Mexico” where the defendant had “advertised its alcoholism
treatment center in the yellow pages of the Albuquerque telephone directory[,]
. . . contacted the director of [a New Mexico organization] to solicit . . .
referral of patients to the treatment center[,] . . . mail[ed] a brochure [to
the plaintiff], inviting her to attend the treatment program’s ‘Family Week[,]’
[and] telephoned [the] plaintiff from Arizona, to encourage her attendance.”
Id.
¶¶ 2, 4;
see Cronin,
2000-NMCA-082, ¶ 16 (agreeing with the
plaintiffs that their claims arose from the hospital’s transaction of business
in New Mexico because “but for [the h]ospital’s solicitations, [the p]atient
would not have sought treatment at [the h]ospital nor would he have endured
certain health complications arising from [the doctor’s] prescription and [the
d]efendants’ negligent failure to monitor the administration of potentially
ototoxic antibiotics”);
see also Presbyterian Univ. Hosp. v. Wilson, 654
A.2d 1324, 1331 (Md. 1995) (stating that the hospital’s “voluntary efforts to
register as a Maryland [Medicaid] provider and to be designated as a liver
transplant referral center served in many respects to effectively solicit
Maryland residents to seek treatment” at the hospital and that “[t]hese general
business contacts are directly related to the [medical negligence and wrongful
death] action and serve as support for the finding of specific jurisdiction”).
{38} Consistent with
Kathrein
and
Cronin, we conclude that, if the alleged relationship exists,
Plaintiffs’ claims here are sufficiently connected with it . The fact that Dr.
Frezza may have been the only provider covered by Presbyterian and thus
Plaintiffs had no option to seek treatment in New Mexico only strengthens the
connection between the two. But because the district court did not address the
alleged relationship in the context of specific jurisdiction, there is no
factual record addressing “the precise nature of the defendant’s contacts with
the forum, the relationship of these contacts with the cause of action, and []
weighing . . . whether the nature and extent of contacts . . . between
the forum and the defendant . . . satisfy the threshold
demands of fairness.”
Presbyterian Univ. Hosp., 654 A.2d at 1330 (second
and third omissions in original) (internal quotation marks and citation
omitted). The same questions about the relationship identified in our
discussion of general jurisdiction apply in an analysis of specific
jurisdiction. Hence we expect the district court will address them on remand in
both contexts.
3. Fair
Play and Substantial Justice
{39} “The United States
Supreme Court has held that even if a defendant has established sufficient
minimum contacts with the forum state, the Due Process Clause forbids the
assertion of personal jurisdiction over that defendant under circumstances that
would offend traditional notions of fair play and substantial justice.”
Sproul,
2013-NMCA-072,
¶ 35 (internal quotation marks and citation omitted). Since we have concluded
that an evidentiary hearing is necessary to clarify Dr. Frezza’s contacts with
New Mexico and the strength of those contacts will affect the analysis of
whether it is unfair to assert jurisdiction over him, we do not address this
issue except to provide guidance on two points. First, Dr. Frezza argues on
appeal that he would be substantially burdened by having to defend himself in
New Mexico because (1) he is immune from suit under Texas law and (2) Texas
courts are “better situated [than New Mexico courts] to deal with the issues
inherent in applying Texas’s Tort Claims Act.” Both of these arguments assume
that the Texas Tort Claims Act will apply to this case, a proposition we
rejected in the companion case,
Montaño, COA No. 32,403, ¶ 39. He also
argues that Texas has “significant public policy interests in litigating
th[ese] case[s]” because he is a government employee. Although we recognize
that Texas has an interest in this case, we have concluded that, under the
facts of these cases, New Mexico has an equal or greater interest.
See id.
¶ 30. Finally, we reject this line of reasoning because, although there is some
overlap, the personal jurisdiction and choice of law inquiries are distinct and
different. The United States Supreme Court cautioned against entwining the two
analyses, stating that “[t]he question of [whether the forum state’s law
applies] presents itself in the course of litigation only after jurisdiction
over [the] respondent is established, and we do not think that such choice of
law concerns should complicate or distort the jurisdictional inquiry.”
Keeton
v. Hustler Magazine, Inc., 465 U.S. 770, 778 (1984).
{40} Second, the district
court concluded that “[e]xercising personal jurisdiction over Dr. Frezza in New
Mexico would violate traditional notions of fair play and substantial justice”
because “many of the important fact witnesses in this case reside in Texas and
. . . Dr. Frezza will be unable to compel fact witnesses in Texas, including
the healthcare providers who subsequently treated Plaintiff[s] and allegedly
diagnosed [their] complications, to testify in person at trial in New Mexico.”
At the hearing, the district court stated that it would be a “horrible trial if
we have to show the jury video tapes of those people [because the jury] would
be asleep.” Even if we construe these findings as addressing the burden on Dr.
Frezza and efficiency of the trial, there is nothing in the record indicating
that the district court considered the other
Zavala factors, such as
“New Mexico’s interest, the plaintiff’s interest, . . . and the interest in
promoting public policy.”
2007-NMCA-149, ¶ 12. In addition, it is difficult to
see how the concerns voiced by the district court establish the
unconstitutionality of New Mexico’s assertion of jurisdiction. On remand, the
district court should consider all of the
Burger King factors in
relation to the strength of Dr. Frezza’s contacts with New Mexico in assessing
the fairness of personal jurisdiction over him.
See Burger King Corp.,
471 U.S. at 476 (stating that if “it has been decided that a defendant
purposefully established minimum contacts within the forum [s]tate, these
contacts may be considered in light of other factors to determine whether the
assertion of personal jurisdiction would comport with fair play and substantial
justice” (internal quotation marks and citation omitted));
Salas v.
Homestake Enters. Inc.,
1987-NMSC-094, ¶ 6,
106 N.M. 344,
742 P.2d 1049
(citing
Burger King and considering the defendant’s contacts in
assessment of the fairness of jurisdiction).
{41} For the foregoing
reasons, we remand for further proceedings consistent with this Opinion.
MICHAEL D. BUSTAMANTE, Judge
1
In a cursory argument, Plaintiffs contend that specific personal jurisdiction
is appropriate because Dr. Frezza traveled to New Mexico and consulted with at
least one patient here. However, they do not explain how their injuries arose
from this contact. We therefore decline to address this argument. Headley v.
Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076
("We will not review unclear arguments, or guess at what [a party's]
arguments might be.").